Citation Nr: 0939448
Decision Date: 10/19/09 Archive Date: 10/28/09
DOCKET NO. 06-29 351 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center
in Wichita, Kansas
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for posttraumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Pflugner, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1968 to July
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office Center
(RO) in Wichita, Kansas.
In an August 2009 statement, a clinical psychologist related
a current panic disorder to the Veteran's service-connected
posttraumatic stress disorder (PTSD). As such, this claim is
referred to the RO for appropriate development.
The appeal is remanded to the RO via the Appeals Management
Center, in Washington, DC.
REMAND
The Veteran originally submitted his claim of entitlement to
service connection for PTSD in July 2005. Pursuant to this
claim, the Veteran was scheduled for and underwent a VA
examination in February 2006. Service connection was granted
for PTSD that same month and a 30 percent evaluation was
assigned thereto, effective July 27, 2005. The Veteran
perfected an appeal of this decision seeking an initial
evaluation in excess of 30 percent. After reviewing his
claims folders, the Board finds there is a further duty to
assist the Veteran with this claim. 38 U.S.C.A. § 5103A
(West 2002); 38 C.F.R. § 3.159 (2009).
In his May 2006 notice of disagreement, the Veteran asserted
that his PTSD had worsened since the February 2006 rating
decision. In August 2009, subsequent to the Veteran's claim
being certified to the Board, the Veteran submitted VA
treatment records and two statements from his treating
doctors. This evidence is supportive of the Veteran's
contention that his PTSD had worsened. In the September 2009
brief, the Veteran's representative reiterated the contention
that the Veteran's PTSD had worsened. VA's General Counsel
has indicated that a new examination is appropriate when
there is an assertion of an increase in severity since the
last examination. VAOPGCPREC 11-95, 60 Fed. Reg. 43186
(1995). Moreover, given that the February 2006 examination
took place more than three years ago, the Board finds that
the Veteran's recent treatment records should be obtained and
that he should be scheduled for a new VA examination to
ascertain the current severity of his service-connected PTSD.
See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding
that VA's statutory duty to assist includes a thorough and
contemporaneous medical examination); see also Littke v.
Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may
be required if the record before the Board contains
insufficient medical information for evaluation purposes).
In August 2009, as noted above, the Veteran submitted
pertinent VA treatment records and two opinions from his
treating doctors after his claim for an increased initial
rating had been certified to the Board for appellate review.
According to 38 C.F.R. § 20.1304 (2008), "[a]ny pertinent
evidence submitted...must be referred to the agency of
original jurisdiction for review, unless this procedural
right has been waived...or unless the Board determines that the
benefit or benefits to which the evidence relates may be
fully allowed on appeal without such referral." See also
38 C.F.R. § 19.37 (2008). The evidence submitted after the
Veteran's claim was certified to the Board was not
accompanied by a contemporaneous waiver of review by the RO.
Further, as found by the Board above, a more recent VA
examination is required to decide this claim. Thus, the
Board finds that the benefit sought on appeal cannot be fully
allowed based on the evidence of record, including the
evidence submitted after the Veteran's claim was certified to
the Board. Consequently, a remand is warranted for further
development and consideration of the evidence submitted in
August 2009.
Accordingly, the case is remanded for the following action:
1. The RO must contact the Veteran to
provide him an opportunity to identify all
VA and non-VA medical providers who have
treated him for PTSD during the course of
this appeal. The RO must then obtain
copies of the related medical records that
are not already in the claims file. All
attempts to secure this evidence must be
documented in the claims file by the RO.
If, after making reasonable efforts to
obtain the identified records, the RO is
unable to secure same, the RO must notify
the Veteran and (a) identify the specific
records the RO is unable to obtain; (b)
briefly explain the efforts that the RO
made to obtain those records; and (c)
describe any further action to be taken by
the RO with respect to the claim. The
Veteran must then be given an opportunity
to respond.
2. The RO must make arrangements with the
appropriate VA medical facility for the
Veteran to be afforded a comprehensive VA
psychiatric examination to determine the
current severity of his PTSD. The claims
folder must be made available to the
examiner for review in conjunction with the
examination. The examiner must provide
accurate and fully descriptive assessments
of all psychiatric symptoms. The examiner
must also enter a complete multi-axial
evaluation, and assign a Global Assessment
of Functioning score, together with an
explanation of what the score represents in
terms of the Veteran's psychological,
social, and occupational functioning. The
examiner must discuss the Veteran's
employment history, and must provide an
opinion as to whether the appellant's PTSD
renders him unable to obtain or retain
substantially gainful employment. A
complete rationale for all opinions must be
provided. Any report prepared must be
typed.
3. The RO must notify the Veteran that it
is his responsibility to report for the
examination and to cooperate in the
development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R. §§
3.158, 3.655 (2008). In the event that
the Veteran does not report for the
aforementioned examination, documentation
must be obtained which shows that notice
scheduling the examination was sent to the
last known address. It must also be
indicated whether any notice that was sent
was returned as undeliverable.
4. Once the above action has been
completed, the RO must readjudicate the
Veteran's claim on appeal, taking into
consideration any newly acquired evidence,
including, but not limited to, the
evidence submitted by the Veteran after
his claim had been certified to the Board.
If any benefit remains denied, a
supplemental statement of the case must be
provided to the Veteran and his
representative. After the Veteran has had
an adequate opportunity to respond, the
appeal must be returned to the Board for
appellate review.
No action is required by the Veteran until he receives
further notice; however, the Veteran has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).